The Obama Administration is seeking congressional approval of an order allowing the Authorization for Use of Military Force (AUMF) against the terrorist group ISIL.

President Obama has formally requested (pdf) congressional approval for use of military force against an al-Qaida offshoot called the Islamic State of Iraq and the Levant, also known as ISIL or ISIS. Back in September of 2014, the Campbell Law Observer looked at the mounting opposition President Obama was receiving regarding how he was handling military action taken against ISIL. Now the Obama Administration is trying to revert from its prior policy as it attempts to gain credibility in putting together and continuing to lead a coalition of forces against ISIL.

The request outlines what many are calling a starting point for public debate.

ISIL is a terror organization with strongholds in Iraq and Syria that has been growing in areas throughout the Middle East, as well as gaining factions of support in the West. The group is best known for its barbarism towards civilians and hostages, with many of the group’s acts resulting in gruesome executions that are recorded and posted online. President Obama’s request aims to eliminate ISIL and its affiliates, yet the language of the request has raised concerns from both Republicans and Democrats alike.

The request outlines what many are calling a starting point for public debate. Many Republican lawmakers are concerned that the scope of the request is too narrow, while Democrats would like to further enumerate what powers the president is able to hold during the effectiveness of the AUMF.

One area of concern for members of Congress is that, under Sec. 3 of the AUMF, the resolution would be in effect for a three-year period. The concern arises from the fact that President Obama will only be in office for two more years, allowing for a new president to come into office and potentially interpret any ambiguities of the AUMF in his or her favor. This concern highlights the difficult balance between giving the president enough flexibility and leeway to combat ISIL, while still having the restraints in place so that the president cannot entrench our armed forces in a way that the AUMF attempts to prohibit.

Senator Chris Murphy said, “I think there’s gonna be a lot of us who are very worried about the open-ended nature of the AUMF.”

Another specific area of the proposal critiqued by Republicans is the prohibition against “boots on the ground,” or American soldiers, being used to combat ISIS troops in a traditional sense of war. Instead, President Obama believes that ISIL can be eliminated using airstrikes. The language of Sec. 2(c) of the President’s request, which outlines the limitation of ground forces, caveats the limitation by saying that no “enduring” ground forces will be used in order to combat ISIL.

Lawmakers were quick to jump on the ambiguity of how “enduring” would be defined by President Obama, as well as the next president to take office. ABC News quotes Senator Chris Murphy, a democrat from Connecticut, saying, “I think there’s gonna be a lot of us who are very worried about the open-ended nature of the AUMF. I have no doubt that President Obama is going to maintain his commitment to keep ground troops out of the Middle East, but my worry is that this version of the AUMF will allow for the next president to repeat the mistakes of the past. For many of us it’s going to be tough to swallow restriction on ground troops that doesn’t seem to be much of a restriction at all.”

Senator Murphy has taken his uneasiness a step further by introducing a bill that would repeal the 2001 Authorization for Use of Military Force that went into effect following the September 11th terror attacks.

Further, Sec. 5 of President Obama’s proposal addresses who may be targeted as “associated persons” of ISIL. The definition of associated persons is stated as any “individuals and organizations fighting for, on behalf of, or alongside ISIL or any closely-related successor entity in hostilities against the United States or its coalition partners.” The definition itself is not surprising in its less than detailed description of ISIL affiliates.

However, it is noteworthy that the description of associated persons places no limits on where these individuals may be located. Those wary of President Obama’s language have noted that the lack of boundaries on persons affiliated with ISIL ultimately means that the President may be getting a “blank check” to go after such persons, whether or not they are located in traditional ISIL territory.

Yet President Obama now seems ready to work with Congress in order to move forward with military activity against the terror network.

Moreover, the request for AUMF made by President Obama makes explicit the fact that the request is working within the framework of the War Powers Resolution. The War Powers Resolution was passed in 1973, overriding President Nixon’s veto, which outlined the steps that must be taken in order for the president to commit the United States’ armed forces to war. The resolution was passed because, much like the circumstances we see today, then-President Nixon was overseeing military activity in Korea and Vietnam without any declaration of war granted by Congress. At the time, Congress believed that the legislative branch had the power to declare war as provided in Art. 1 Sec. 8 of the United States Constitution, and that President Nixon and the executive branch were overstepping their authority.

Until recently the White House has been acting under the idea that the War Powers Resolution was not applicable to the military actions taken by President Obama against ISIL. Instead, the White House argued that the prior airstrikes against ISIL were within the President’s scope under the AUMF passed in 2001, as well as an additional AUMF against Iraq passed in 2002. Sec. 6 of President Obama’s proposal would repeal the 2002 AUMF, but would keep in place the 2001 AUMF.

Yet President Obama now seems ready to work with Congress in order to move forward with military activity against the terror network. Obama’s proposal states in Sec. 2(b) that the AUMF falls within the proper authorization guidelines of the War Powers Resolution. Lastly, subsection 2(b) concludes by stating, “[n]othing in this resolution supersedes any requirement of the War Powers Resolution.”

It is encouraging that both of our political parties are probing into the details of a simplistic three page document that may have flown through the House and Senate not more than a decade ago.

Obvious to many, but still the figurative elephant in the room, is the fact that both President Obama and leaders in the House and Senate do not want to repeat mistakes from the not too distant past. Our nation’s leaders recognize that ISIL does pose a threat to United States interests, yet the caution espoused by those same leaders is evident through their words and actions.

Quite frequently, we want our elected officials to act in a swift fashion in order to accomplish a goal, especially on such an important issue like a declaration of war against a ruthless enemy. However, the quote attributed to George Santayana, “those who cannot remember the past are condemned to repeat it,” seems to be hovering over our current Congress. It is encouraging that both of our political parties are probing into the details of a simplistic three-page document that may have flown through the House and Senate not more than a decade ago. With their reservations of committing to another military action against a difficult enemy, it will be interesting to see how Congress ultimately addresses President Obama’s AUMF request.

Brady Ciepcielinski served as the Features Editor of the Campbell Law Observer during the 2014-2014 school year. He received his Bachelor’s Degree in Finance with a minor in History from Virginia Tech in 2012. Brady has previously worked for Chief Bankruptcy Judge Randy D. Doub; Cobin Law, PLLC; the North Carolina Office of the State Auditor; and Rogers Townsend & Thomas, PC of Charlotte. Brady graduated from Campbell Law School in May 2015.